Charles Flanagan (Laois, Fine Gael) | Oireachtas source

It is important to retain section 37 for legal certainty and for transparency and I cannot therefore accept the amendments. In the field of social protection, for example, certain important and valuable schemes operated by the Department of Employment Affairs and Social Protection, operate on a non-statutory basis, such as the free fuel scheme, free travel scheme, back to school clothing and footwear allowance and the school meal programme. All of these schemes do now, and will continue to, require the processing of personal data, and that processing is compliant with GDPR. Recital 41 states that where the GDPR refers to a legal basis "this does not necessarily require a legislative act adopted by parliament". I am sure Members will agree that these schemes, and other similar non-statutory measures, such as schemes to assist victims of flooding and of the recent fodder shortage, can be administered pretty quickly without the need to have a statutory basis. These are beneficial, and it would not be in anybody's best interests if they were jeopardised by the introduction of what might be regarded as legal uncertainty in respect of the data processing that is essential for their operation.

Subsection (4) allows for the making of regulations to specify that processing of personal data is necessary for the performance of a task carried out in the public interest by a controller or in the exercise of official authority which may be vested in the controller. As in the case of previous amendments, amendments Nos. 21 and 22 appear to arise from a misreading, on the basis that the regulations referred to in subsections (4) and (5) will not create a lawful basis for processing. The legal basis is Article 6 of the GDPR. The amendments are intended to clarify that certain processing is necessary for the performance of a task. I cannot accept amendments 21 and 22.

I reiterate that section 37, as it stands, is important and essential for reasons of legal certainty and that I cannot accept amendments to it.

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